Tales From The National Surveillance State: Domestic Surveillance by the Pentagon and the CIA

JB

The Mew York Times reports that the Pentagon and the CIA have been using "noncompulsory" versions of national security letters to obtain financial records on Americans and American companies. Unlike traditional search warrants, national security letters do not require examination by a neutral independent magistrate to determine whether the request is reasonable and/or supported by probable cause. Instead, the agency which issues the letter decides for itself whether the request is reasonable.

The practice of national security letters by the Pentagon and the CIA is not new but the amount and scope has greatly accelerated under the Bush Administration; former Defense Secretary Donald Rumsfeld sought to greatly expand the military's intelligence gathering powers following the 9/11 attacks and therefore pushed for aggressive readings of existing law to enable the military to investigate more and more domestic activities, even though both the military and the CIA are generally banned from domestic surveillance.

The temptation for the Pentagon and the CIA to push the envelope on domestic surveillance is entirely understandable, even if it is legally dubious and creates enormous dangers for civil liberties. The National Surveillance State arises because of the changing demands of and possibilities for governance in an age that features both increased possibilities of terrorism moving across national borders and more powerful methods of electronic surveillance. Although by law the CIA and the Pentagon are supposed to deal only with "outside" threats to the country, it is increasingly difficult to decide what is "inside" and what is "outside" the United States, and what is a question of domestic law enforcement and what is a question of military defense.

As I have explained previously, the National Surveillance State tends to produce a second, parallel track that routes around the traditional criminal justice system with its checks and balances that are designed to limit executive overreach and arbitrariness. In this parallel track of investigation, apprehension, detention, and punishment, the Bill of Rights does not apply. Indeed, precisely for this reason the temptation to use and to augment this parallel track becomes irresistible for government servants; their primary mission is to protect the country from harm, and predictably, they seek to eliminate any unnecessary impediments to fulfilling their mission.

Thus, over time, the military and the CIA, faced with an increasing urgency to deal with developing threats that cross national boundaries, will push the envelope on their existing powers, expanding what were previously marginal practices, using them more extensively, and making them far more common. As they expand the parallel track, they recreate the very dangers to personal freedom that led to the checks and balances characteristic of the primary track of traditional law enforcement.

Indeed, not only is there pressure to expand the parallel track, there is pressure to "reform" the traditional track-- with its multiple checks on executive overreaching-- to allow it to harness the information obtainable in the parallel track. Thus, at the same time the CIA and the Pentagon have been breaching the boundary between foreign and domestic surveillance, the Federal government-- through the Patriot Act and other changes in practice-- has beefed up the use of national security letters (which do not require prior judicial review) and expanded the scope of executive surveillance over persons in the United States (the NSA domestic surveillance program being one obvious example). Moreover, the government has argued that the fruits of this surveillance, like the fruits of any other legal surveillance, should be admissible in the ordinary criminal justice system.

We should not assume that a change of administrations will cure these tendencies; they are the result of larger forces and systemic pressures. Our task is to find new ways to guard against the guardians of our security in the electronic age.

Despite the NYT usual obfuscation to make it appear to the casual reader that the CIA and Pentagon are picking the names of innocent American civilians out of the phone book to check their financial records, it appears that the military and probably also the CIA are using a handful of these letters to obtain financial information on their own personnel who appear to have come into a significant amount of money recently.

Why should the military or CIA care about that? The answer is counter intelligence spy catching 101.

Most traitors in the CIA and military betray their country for money rather than out of ideology. Thus, when a agent or soldier on a government salary starts spending money on expensive items, this will raise red lights with any competent counter intelligence department within CIA or the military.

Is this unfair? Hardly.

When you sign up to serve in the military you waive nearly any privacy right you may enjoy as a civilian. If a local creditor says GI Joe owes him money, Joe's commanding officer can demand to see his financial records, garnish his wages to pay the bill and punish the soldier for not paying the bill. Yes, you can be thrown in the brig and given extra duty for failing to pay your bills. Thus, I can see no legal or practical problem with the military requesting a bank or credit agency to voluntarily provide those same records.

I cannot speak for the CIA concerning what rights their agents waived when signing their contracts, but I would guess that the situation is similar.

De Palma... Despite the NYT usual obfuscation to make it appear to the casual reader...

Perhaps you should just provide a link to Bob Kohn's blog. This April will mark two years since his last post. I suspect this is what your own blog would look like, if you had the balls to start one.

De Palma... Most traitors in the CIA and military betray their country for money rather than out of ideology.

Traitors are everywhere. It must be a scary place inside your head, De Palma. At least they will only betray you for profit instead of an evil ideology, but perhaps the "supremacy of market forces" is their ideology.

FAS Note: This December 1992 document is the penultimate draft of the Senate Foreign Relations Committee report on the BCCI Affair. After it was released by the Committee, Sen. Hank Brown, reportedly acting at the behest of Henry Kissinger, pressed for the deletion of a few passages, particularly in Chapter 20 on "BCCI and Kissinger Associates." As a result, the final hardcopy version of the report, as published by the Government Printing Office, differs slightly from the Committee's softcopy version presented below.--Steven Aftergood

Gosh, I remember this from my small collection of BCCI books, but had never realised it was the same John Kerry. This really ought to count in peoples’ minds a lot more than any tales of heroics in Vietnam. The fact that George W Bush borrowed money from BCCI in 1987 but John Kerry launched the investigation in 1988 that eventually brought them down really says about all you need to know about the character of the two men. BCCI was a really quite extraordinarily bad organisation and Kerry’s investigation opened the eyes of the whole world to the extent that it was possible to get away with corruption in high-quality financial centres. It was about this time, by the way, that the liberal media of the USA were smearing Gary Webb as a “crackpot conspiracy theorist” for reporting, accurately, on the fact that politically well-connected Nicaraguans were being allowed to get off easily on cocaine smuggling charges. The Washington Monthly story is well worth a read.

I think it bears repeating that there is reason to believe the timing in relationship to nine-one-one was less causal than opportunistic. The PNAC gang, and arguably other elements in the GOP (say those represented by former CIA-head-cum-VP-cum-President Bush) were actively seeking to undo limits on the intelligence community put in place after the Cointelpro excesses came to light. Results such as H.R. 3162 (the so-called "patriot" act) were _not_ "in response to" nine-one-one, except to the extent nine-one-one made such assaults on liberty politically feasible.

Professor Balkin: We should not assume that a change of administrations will cure these tendencies; they are the result of larger forces and systemic pressures.

Indeed, and a point which cannot be stressed enough. While some will blindly toe the militaristic line the truth is that anyone who claims to seek smaller government (non-CINO and non-LINO [Conservative/Libertarian in name only]) should be fighting against these forces shoulder to shoulder with all other true patriots to protect the principles that, at least in theory, earn us a lane on the moral high-road.

jt: I suspect this is what your own blog would look like, if you had the balls to start one.

Fact check before you snark. Unlike most contributors here, Bart a) Posts in his meatspace name, is easily googled, b) Has an active blogger profile which in turn links to his blog, "Citizen Pamphleteer." True, he hasn't added much to it lately, but, well my own four domains are being neglected while I spend perhaps an unwise amount of my discretionary time wrangling with folks here.

I think it bears repeating that there is reason to believe the timing in relationship to nine-one-one was less causal than opportunistic.

You are absolutely correct about this. Not only was PATRIOT intended to loosen the restrictions on domestic spying as a result of COINTELPRO and the Church Commission but restrict due process as with RICO. They have been wanting to go there for years.

@Arne: Yo, ease up. There's plenty of substantive arguments to make with Bart, we don't really need to flood the comments section with scads of casual side-swipes. $.02.

Is a substantive, cogent and sound argument that falls on deaf ears (or is puposefully ignored) really part of a productive intellectual exercise?

@Arne: Yo, ease up. There's plenty of substantive arguments to make with Bart,....

What? Have I been slipping in my duties? ;-)

But "Bart" wanted to point out how it was 'easier' ("far less work and time") to poach on Balkinization, rather than trying to opine on his own blog. I'd say that the effort he's put into building his own blog belies his excuse; rather I suspect that no one actually wants to read his emanations....

Is a substantive, cogent and sound argument that falls on deaf ears (or is puposefully ignored) really part of a productive intellectual exercise?

Perhaps. In a public blog, the lurkers and other commentators are also participants in the endeavours. What matters more is not the size of the potential audience, but the cogency and clarity of the argument. Another fine reason for "Bart" to spend more time on his own blog. "If you build it, they will come." ;-)

Although I really feel that we should try to stop going meta all the time, I am inclined to join. @Arne: the problem for me is more that you use 3 one phrase subsequent replies to mr. DePalma. Putting it all in one comment make the blog easier to read and for people that don't want to read your feud with DePalma it would be easier to skip.

I am truly sorry that arne followed me here and is causing the rest of you problems. I am doing my best not to encourage him, but it appears that I have my own cyber stalker trying to reenact the blogger version of the movies Fatal Attraction and Swimfan.

I suspect you flatter yourself. If you can haunt liberal blogs because you find them more entertaining then certainly others can haunt you for their sport as well. And it's not like Arne got banned from the site where y'all met. As for your agreement to ignore each other, I suspect that would suit you fine as his posts so frequently show yours to be, well, less outstanding than you might like them to be. I may tire of Arne's one-liners, but I certainly welcome his ample and reliable counter to your roughly banged drum of PNAC-sympathizer talking points. $.02

Although I really feel that we should try to stop going meta all the time, I am inclined to join. @Arne: the problem for me is more that you use 3 one phrase subsequent replies to mr. DePalma. Putting it all in one comment make the blog easier to read and for people that don't want to read your feud with DePalma it would be easier to skip.

Point taken. And I do sympathise. I can go back to the "long" format (and sometimes I do). But then "Bart" complained about the long, long posts. I said that if he'd restrict himself to a single load of horse-apples per post, I'd do a single (short) answer.

You do make me laugh more than Bart does, Arne. ;) Plus: you do try to understand questions asked and try to answer them (altough not always without malice...)

Ummmmm ... Alice? That's just not me. I'm with a sweet woman by the name of Kris.

I will admit to a rather sharp and caustic form when addressing the most egregious forms of RW demagoguery, lies, logical fallacies, and obfuscation. I respect integrity and honour. I detest dishonesy of all kinds. One of my closest friends in law school was perhaps one of the most conservative students in the class. We got along just fine. It is possible to have a principled conservative position. "Bart" (and now "nk") havent figure that out yet.